The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1887-09-07
MICHIELS INSURANCE CASE.
The Court In BancO Render a De.
cIsiOm.

In the Supreme Court of the HaWa-
ian Islands in bancc. July term, 1887
Charles Michiels, plaintiff, vs.. The Hart
ford Fire Insurance Co, Hartford, Con
necticut, defendant.
Exceptions from rulings of McCully,
Judge.
BEFORE THE CHIEF JUSTICE AND ASSOCIATE
JUSTICES M'CULLY, PRESTON AND BIcK-
ERToN
Opinion of the Court by Preston. j.
This case comes before us on a bill of
exceptions by the plaintiff to the rulings
of McCully, j., at the trial of the action
at the last April term, whereby he al
lowed the defendant to amend the an
swer upon terms and directed nom
sci at the conclusion of the plaintiffs
case.
The amendments allowed by the
learned Judge were within his discre-
ton, and cannot be considered here.
The bill of exceptions in this respect
is therefore overuled.
The action is brought to recover the
sum of $500 upon a fire policy assuring
that amount upon certain stock in trade
of the plaintiffs, upon his store and
premises in Fort street, Honolulu.
The policy is dated the 18th day of
August, 1885, and contains the follow
ing stipulation: cor if any change takes
place in the title or possession of the
,,rC,1ort,, 1,,bofbor NV colo 4roDofor nv,
veyance, legal process, judicial decree
or if the assured is not the
sole, absolute and unconditional owner
of the property Insured then,
and in every such case, this policy shall
be void"
''This policy is made and accepted on
the above express conditions
On the 4th day of August, 1886, dur
ing the currency Of the policy, the
property covered by it was destroyed by
fire.
There were assurances in three other
Offices, in like amount, and the several
companies refused payment.
AT the trial the plaintiff was called as
witness on his own behalf, and on
cross-examination was shown a paper
hereinafter set out) and stated: 81 re-
tee for my bonds, to assure people who
had been guarantees for me-that is my
signature: did not read paper; signed it
at Mr. Neumann's request-knew it was
only guarantee to be given to Mr.. Da-
Wis and Mr. Bowler-did not know it
sold absolutely store and goods gave
it to Nr. Neumann, not to Whiting; l
gave it as guarantee merely"
Mr.. Whiting testified that the bill of
sale was made at the instance of Mr..
Neumann, to secure his (Whiting's)
client, Bowler [who was on Michiel's
bond and also on his Chinese clerk
bond, on a charge of having opium in
possessionl, and was delivered to him
to hold until after the cases were de-
he paid no consideration for
it-took no possession, and that he held
the paper lerely as security for Bowler
and bondsmen, and that it was not to be
used or put into effect unless Michiels
made default, and that there was no in
tention to transfer the property.
The plaintiff, having introduced other
testimony as to value, etc., rested his
case.
Counsel for defendant thereupon moved
for nonsuit, because of the execution of |
said bill of sale, on the ground that it |
was a violation of the terms of the |
policy, and the Court allowed the mo-
ton, and ordered the plaintiff to be non
suited.
To which order the plaintiff excepted.
The following is a copy of the bill of
sale: "Know all men by these presents, |
that l, Charles Michiels, of Honolulu, |
Island of Oahu, for and in consideration |
of the sum of one dollar, to me in hand |
paid, the receipt whereof is hereby ack- |
and for other good and valu- |
able considerations, me thereto moving, |
from w. A Whiting, of the same place, |
have bargained and sold, and by these
presents, do grant and convey unto the |
9dIu w n w nlIIig, MS EXECUTORS, AL
and assigns, all the mer-
chandise, fixtures, goodwill and out
accounts due, belonging to,
and part of my business in Honolulu, !
carried on on Fort street, near Merchant !
street, known as the Louvre of Brus-
sells To have and to hold, unto the
said w A. Whiting, his executors, ad- !
and assigns forever. And |
in consideration of the premises, here
by covenant with and unto the vendee
that l will warrant and defend the sale
hereby made, against any and all per-
sons lawfully claiming, or to claim the |